CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1991 WL 20425
...To obtain a permit pursuant to the provisions of chapter 373, an applicant must establish that the proposed use of water: (a) Is a reasonable-beneficial use as defined in section
373.019(4); (b) Will not interfere with any presently existing legal use of water; and (c) Is consistent with the public interest. §
373.223, Fla....
...1985); Public Employees Relations Comm'n v. Dade *1328 County Police Benevolent Ass'n,
467 So.2d 987 (Fla. 1985); see also Edward J. Seibert, A.I.A., Architect and Planner, P.A. v. Bayport Beach and Tennis Club Ass'n,
573 So.2d 889 (Fla. 2d DCA 1990). The factors described in section
373.223 and in the definition of "reasonable-beneficial use" create mixed questions of law and fact....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2001 WL 10391
...d by the Department or [water management] Districts. However, procedures are included in this Chapter which provide for the review *908 of Department and District plans, programs, and rules to assure consistency with the provisions of this Chapter." Section 373.223(1), Florida Statutes (1995), states that to obtain a WUP, the applicant must establish that the proposed use of water: (a) is reasonable-beneficial; (b) will not interfere with any presently existing legal water use; and (c) is consistent with the public interest....
...necessary to ensure "that such use is consistent with the overall objectives of the district or department." Thus, the District may adopt reasonable rules in connection with its water use permitting duties in implementing the three-prong test under section 373.223(1)....
...However, in the present case, we determine that our ruling would be the same regardless of whether the agency or the challenger shouldered the burden of persuasion in connection with the proposed rules. In implementing the three-prong test outlined in section 373.223(1), the District promulgated rule 40D-2.301(1) of the FAC that contains fourteen criteria that a WUP applicant must meet: (1) In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and be...
...gislative authority under section
120.52(8)(c) because it "enlarges, modifies, or contravenes the law implemented." Pinellas argues that the District has violated this principle by promulgating a fourteen-part test to replace the three-prong test of section
373.223(1) and the two-prong test of section
373.226(2), Florida Statutes (1995)....
...the two-prong test is to be applied in perpetuity to WUP applicants whose water use predated the Florida Water Resources Act of 1972. *912 Section
373.226 has been in continuous existence from the date of the 1972 Act, as has the three-prong test of section
373.223(1)....
...source caution areas, unless objective evidence demonstrates that such reuse is not economically, environmentally, or technically feasible." We conclude that the proposed portion of BOR 3.1 requiring reuse is authorized under the three-prong test of section 373.223(1) that requires that a use be reasonable-beneficial and in the public interest....
...or practical knowledge esp. in a mechanical or scientific field." The American Heritage College Dictionary 1392 (3d ed.1993). The term "technologically feasible" is also used in legislative enactments. See, e.g., §§ 287.045(5),
373.0421(1)(b)(1),
373.223(3)(c),
373.461(1)(a),
376.031(22),
934.15(1)(d), Fla. Stat. (1999). Under section
373.223(3)(c), Florida Statutes (1999), when determining whether, under certain specified conditions, the potential transport and use of ground water across county boundaries is consistent with the public interest, the governing board of a wa...
...3-.249 is in conflict with any state law or local ordinance, that portion of the Florida Water Act controls. Because we held that the proposed portion of BOR 3.1 regarding reuse is authorized under the reasonable-beneficial and public interest test, section
373.223 controls over §
125.01(1)(k)(1)....
...anning process." [18] We conclude that the District has the authority to require WUP applicants to investigate desalination and implement it where feasible as part of the reasonable-beneficial and public interest prongs of the three-prong test under section 373.223....
...rectly found that "[c]onsideration of a utilities' conservation efforts, including its rate structure, is appropriate in determining water allocations and applying the reasonable-beneficial use and public interest elements of the three-prong test of section
373.223(1)." Pinellas then argues that section
367.011(2) grants the Florida Public Service Commission (PSC) exclusive jurisdiction over water rates....
...te again that the legislature has mandated that if any portion of section II of the Florida Water Act is in conflict with any other state law, that portion of the Florida Water Act controls. Thus, in this instance, should there have been a conflict, section
373.223(1) would control over section
153.11(1)(b)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2012 WL 879284
...However, any portion of an approved regional water supply plan which affects the substantial interests of a party shall be subject to s.
120.569." §
373.709(5), Fla. Stat. (2010). Should an entity choose to undertake an identified water supply development project, it must eventually apply for a water use permit pursuant to section
373.223, Florida Statutes....
...The permit applicant must establish that its proposed water use "(a) [i]s a reasonable-beneficial use as defined in s.
373.019; (b) [w]ill not interfere with any presently existing legal use of water; and (c) [i]s consistent with the public interest." §
373.223(1), Fla. Stat. (2010). If the proposed water use will cross county boundaries, the district's governing board must consider seven additional criteria. See §
373.223(3)(a)-(g), Fla....
...the governing board or department shall presume that the alternative water supply use is consistent with the public interest. . . . This subsection does not effect [sic] evaluation of the use pursuant to the provisions of paragraphs (1)(a) and (b), subsections (2) and (3), and ss.
373.2295 and
373.233. §
373.223(5), Fla....
...formal administrative hearing seeking to challenge the portion of the Plan designating the inland ground water project as an alternative water supply source. In its petition, Appellant, Washington County, alleged that the presumption provided for in section 373.223(5) and "priority funding attention" constitute "preferential treatments" that would "promote, enable, facilitate and secure the permitting and development of" Bay County's proposed well field project, and that withdrawal of groundwater through the well field would affect Washington County's substantial interests....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...The statute placed the burden on the applicant seeking new use to establish that the proposed use of water: (a) Is a reasonable beneficial use as defined in s.
373.019(5); and (b) Will not interfere with any presently existing legal use of water; and (c) Is consistent with the public interest. Section
373.223(1), Florida Statutes....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 11 Fla. L. Weekly 595, 1986 Fla. App. LEXIS 6754
...The Water Resources Act originally established six water management districts. In 1977, the districts were reorganized into five districts. Chapter 77-104, § 113, Laws of Fla. Section
373.219, Florida Statutes, authorizes D.E.R. or the districts' governing boards to require permits for consumptive use of water. Section
373.223(2), Florida Statutes (1985), provides for transfers of water in this manner: The governing board or the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land, across cou...
...nner: (1) The transport or use of water across District boundaries shall require approval of each involved District. (2) In deciding whether the transport and use of water across District boundaries is consistent with the public interest pursuant to Section 373.223, Florida Statutes, the Districts should consider the extent to which: (a) Comprehensive water conservation and reuse programs are implemented and enforced in the area of need....
...of statewide power to regulate the management of water resources and by the specific legislative authority to permit the transport and use of water "beyond overlying land, across county boundaries or outside the watershed from which it is taken." [4] § 373.223(2), Fla....
...utes: (1) The transport or use of water across District boundaries shall require approval of each involved District. (2) In deciding whether the transport and use of water across District boundaries is consistent with the public interest pursuant to section 373.223, Florida Statutes, the Districts should consider the extent to which: (a) Comprehensive water conservation and reuse programs are implemented and enforced in the area of need....
...Therefore, no provision of the Act permits the DER or any district or any other super-agency, to resolve the competing needs and interests of different districts within this state. The Act contemplates transfers across County lines and watershed areas within the same district. Section 373.223(2), Florida Statutes (1983) provides: (2) The governing board or the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land, across county boundaries, or outside the wate...
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 2277, 2009 WL 722021
...[2] This appeal timely followed. The standard of review of a final agency order by a district court of appeal is whether the agency's interpretation of the law is clearly erroneous. Novick v. Dep't of Health Bd. of Medicine,
816 So.2d 1237 (Fla. 5th DCA 2002). Section
373.223(1) of the Florida Statutes sets forth the core criteria for issuance of a CUP and specifies the statutory conditions as follows: §
373.223 Conditions for permit. (1) To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water: (a) Is a reasonable-beneficial use as defined in s.
373.019; (b) Will not interfere with any presently existing legal use of water; and (c) Is consistent with the public interest. §
373.223(1), Fla....
...The inquiry focuses on the impact of the use on water resources and existing legal users. The evidence presented was sufficient to support the District's decision to approve the permit application. Marion County also contends that the District erred by failing to consider statutory factors set forth in section 373.223(3) of the Florida Statute (2007). However, the language of the statute expressly exempts bottled water from consideration. Specifically, the introductory language of section 373.223(3) of the Florida Statutes (2007) provides: 373.223 Conditions for a permit. * * * (3) Except for the transport and use of water supplied by the Central and Southern Florida Flood Control Project, and anywhere in the state when the transport and use of water is supplied exclusively for bottled water as defined in s....
...ivate properties, when evaluating whether a potential transport and use of ground or surface water across county boundaries is consistent with the public interest, pursuant to paragraph (1)(c), the governing board or department shall consider: * * * § 373.223(3), Fla. Stat. (2007)(emphasis added). Thus, the factors set forth in this section need not have been considered while evaluating the instant CUP application. *780 Instead, section 373.223(2) of the Florida Statutes applies. That section states: 373.223 Conditions for a permit. * * * (2) The governing board or the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land, across county boundaries, or outside the watershed from which it is taken if the governing board or department determines that such transport and use is consistent with the public interest, and no local government shall adopt or enforce any law, ordinance, rule, regulation, or order to the contrary. § 373.223(2), Fla....
...nted. The motion argued that evidence concerning compliance with Marion County's comprehensive plan and zoning regulations was irrelevant to the application for the CUP. [2] The additional conclusion of law clarified that only the first paragraph of section 373.223(3) of the Florida Statutes applies to the application because that paragraph excepts the transport and use of water supplied exclusively for bottled water from the remainder of the subsection.
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...legislative authority under section
120.52(8)(c), Florida Statutes (2005). Proposed rule 60-40.474 [1] provides: 62-40.474 Reservations. (1) The governing board or the department, by rule, may reserve water from use by permit applicants, pursuant to section
373.223(4), F.S., in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety....
...inding that the proposed rule permits DEP or the governing board to reserve water only for the purpose of protecting fish and wildlife or protecting the public health and safety, we find that the proposed rule does not enlarge, modify, or contravene section 373.223(4), Florida Statutes (2005), the specific law implemented, which provides, The governing board or the department, by regulation, may reserve from use by permit applicants, water in such locations and quantities, and for such seasons o...
...lth and safety. Such reservations shall be subject to periodic review and revision in the light of changed conditions. However, all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest. § 373.223(4), Fla. Stat. (2005). Section 373.223(4) provides DEP with a broad grant of authority to reserve water in order to protect fish and wildlife or to protect the public health and safety....
CopyPublished | Supreme Court of Florida | 12 Fla. L. Weekly 113, 1987 Fla. LEXIS 1568
...Section
373.219(1) *387 provides that the DER or the governing board of any district may require such permits in order to ensure that the potential use is consistent with the overall objectives of the plan and is not harmful to the water resources of the area. Section
373.223 sets out the conditions for the issuance of such a permit....
...utes: (1) The transport or use of water across District boundaries shall require approval of each involved District. (2) In deciding whether the transport and use of water across District boundaries is consistent with the public interest pursuant to Section 373.223, Florida Statutes, the Districts should consider the extent to which: (a) Comprehensive water conservation and reuse programs are implemented and enforced in the area of need; (b) The major costs, benefits, and environmental impacts h...
...be followed and applied with such latitude consistent with the intent thereof as shall best meet the requirements or necessities therefor." Petitioner bases its argument on the absence of specific language authorizing transfers between districts in section 373.223(2): The governing board or the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land, across county boundaries, or outside the watershed from which it is taken if the go...
...Osceola County until such time as both the St. Johns and South Florida Water Management Districts have studied the problem and determined that such a transfer would meet all statutory criteria, including being "consistent with the public interest." § 373.223(1)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 2147, 1993 WL 46126
...Both the District and Indian Trace challenged Sunrise’s request for standing. After argument, the hearing officer concluded that Sunrise lacked standing. The District adopted the findings of the hearing officer that Sunrise failed to show a substantial interest within the zone of protection of section 373.223, Florida Statutes, the permitting statute....
